Lindo v Lindo
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1839 |
| Date | 04 July 1839 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 1032
ROLLS COURT
S. C. 8 L. J. Ch. (N. S.), 284. See Turner v. Turner, 1880, 14 Ch. D. 839; In re Perkins [1898], 2 Ch. 190.
[496] lindo v. lindo. July 4, 1839. [S. C. 8 L. J. Ch. (N. S.), 284. See Turner v. Turner, 1880, 14 Ch. D. 839; In re Perkins [1898], 2 Ch. 190.] A release, though unlimited in its terms, held, from the recitals and context, to operate only as to a particular sum mentioned in the recitals. An intestate at his death was indebted to D. M. in 1687; disputes, however, arose between the administrator and next of kin as to the legality of the debt, and an agreement was come to between them and the brother of the intestate, whereby, reciting that all the property had been got in and, excluding the disputed debt, amounted to 533 that doubts have arisen as to the validity of that debt, and that being desirous of maintaining the good fame and character of the deceased, the three parties had agreed to waive all questions as to the validity of the debt, and raise a fund to make good the deficiency; that the next of kin had agreed to " relinquish all claim to any residue or surplus;" that the intestate's brother should furnish 384 towards payment of the debt, and the administrator should make good all the residue. It was witnessed that the next of kin released to the administrator all his right, &c., to the personal estate of the intestate, as his next of kin or otherwise, the brother covenanted to pay his part, and the administrator covenanted to pay the residue out of his own money, and also to pay all other debts, &c., of the intestate. The debt was paid, and other funds afterwards fell in to the intestate's estate. Held, that the administrator was not, under the release, entitled thereto. David Lindo in his lifetime carried on business in partnership with his brother 1 BZAV. 497. LINDO V. LINDO 1033 Abraham Lindo, and Moses da Costa Lindo: he died intestate in 1819, leaving his father, Moses Lindo, his sole next of kin, whereupon Moses da Costa Lindo, on the renunciation of Moses Lindo, became his administrator. David Lindo, at his death, was indebted to several persons, and, amongst others, to Daniel Mocatta, in the sum of 1687, 10s., as acceptor of three bills of exchange; this sum had been lent by Daniel Mocatta to David Lindo, to enable him to pay losses incurred by him in speculations in the funds, which were stated to have been of an illegal nature. Moses da Costa Lindo was to become surety for this sum, and for that purpose he indorsed these bills. David Lindo, by a memorandum, authorised and enjoined his representatives to pay Moses da Costa Lindo all that might be due in respect thereof. [497] The assets of the intestate, David Lindo, were possessed by his administrator, Moses da Costa Lindo, who paid all the claims thereon, except the debt due to Daniel Mocatta, and there then remained in the hands of the administrator a balance of .458, 7s. 8d.: but supposing the debt due to Daniel Mocatta to be payable out of the assets of David Lindo, his estate would have been considerably deficient. Moses da Costa Lindo having furnished Moses Lindo with an account of the estate of the intestate, in which he included the debt due to Daniel Mocatta, and thus shewing a deficiency, Moses Lindo objected thereto, and insisted on having that item struck out, alleging, that the sum was not a legal debt which could be recovered against the estate of David Lindo, and that it ought not, therefore, to be charged against his. estate. Considerable discussion took place on the matter, and ultimately the objected item was struck out, and another account omitting it rendered ; the parties seemed to have come to an arrangement, by which it was agreed, that the balance of .458, 7s. 8d. should be applied toward payment of the 1687, 10s., and that Moses da Costa Lindo and Abraham Lindo should pay the remainder. The debt due to Daniel Mocatta was accordingly charged in the books of Abraham Lindo and Moses da Costa Lindo to the brokerage account as a loss, and a sum of 458, 7s. 8d. was carried to the credit of Moses Lindo in a cash account kept with Abraham Lindo and Moses da Costa Lindo, and the same amount was charged, in the account of David Linda's estate, as a payment to Moses Lindo. These entries were made on the 6th of March 1820, and on the same day an entry was made in one of the books of account of Abraham Lindo and Moses da Costa Lindo, by one of their clerks, stating the agreement already mentioned; this entry was signed by Moses Lindo to signify his approval of it, he thereby [498] "giving up all claima and pretensions whatsoever against the said Moses da Costa Lindo as administrator of his late son, 458, 7s. 8d." This entry was alleged to have been made without the concurrence of Moses da Costa Lindo. The agreement was carried into effect by an indenture, dated the 17th of March 1820, and made between Moses Lindo of the first part, Abraham Lindo of the second part, and Moses da Costa Lindo of the third part; and after reciting the partnership, the death of David Lindo, and that letters of...
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